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Obama goes beyond own brief on gay marriage

During his brief comments, Obama suggested several times that his administration was asked by the justices to weigh in on Prop. 8’s constitutionality. While the justices do sometimes make a formal request that the administration submit its views on a case, they did not do so in the challenge to Prop. 8.

The suit against Prop. 8 was filed in May 2009 and went to trial in the first half of 2010. After a district court judge ruled the law unconstitutional, the case traveled to the U.S. Court of Appeals for the Ninth Circuit, which upheld the lower court ruling on somewhat different grounds. The Obama administration could have shared its constitutional arguments with the courts at any point in that process, but kept silent on the issue until Thursday.

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Even though the justices never formally called for the administration’s views, on Prop. 8 they could well have done so verbally later this month. That’s because the Obama Administration is a party to another same-sex marriage case the justices are considering, relating to the 1996 federal law banning federal benefits for same-sex married couples — the Defense of Marriage Act.

That case, in which the administration has taken the position that DOMA is unconstitutional, is set to be argued before the justices later this month on the day before the court is set to take up the Prop. 8 case.

Verrilli is expected to argue the DOMA case personally and it’s possible that, even if the administration submitted no brief in the Prop. 8 case, one or more justices could have asked Verrilli about the administration’s view on the constitutionality of California’s same-sex marriage ban.

Of course, Verrilli may get questions on the subject from the justices anyway. Indeed, Obama’s comment Friday that he would probably favor a national same-sex marriage right may provoke more questions on the point and may have nullified whatever value the administration saw in leaving that point unaddressed in their Prop. 8 brief.